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Friday, July 29, 2011

Marvel Worldwide, Inc. et al v. Kirby et al - The Final Judgement

When emotion and sentiment was removed the Jack Kirby vs Marvel court case was always going to be a legal long shot for the Kirby estate and Marc Toberoff. The ruling has been handed down and, as expected, unfortunately the Kirby heirs didn’t win. After reading all of the documentation that was submitted in the case I seriously doubted that they would win, but I still held out hope that a miracle could happen. However a court case of this kind is decided on proof, not opinion. A person might know something for a fact, or believe that they do, but unless it can be proven it just remains one person’s word against another, and in this case the best the Kirbys could offer were the testimony of two people who relied on hearsay (Mark Evanier and John Morrow) and three artists, Steranko, Sinnott and Ayers, none of whom could testify that they knew, beyond doubt, how Kirby and Lee worked. If anything their testimony bolstered the Marvel case, as they stated that they never did work on spec and that assignments came from Stan Lee. Evanier and Morrow’s testimony was stricken from the record, mainly because Morrow relied on hearsay and Evanier offered opinion that casted doubt on the credibility of Stan Lee, a man who the court stated ‘was there’ during the time period, unlike Evanier. Indeed the court stated that Evanier formulated opinions despite not being present and as such as no first hand knowledge of how Kirby and Lee worked.

In a damning statement, the court further went on to state that, “...by purporting to opine on the credibility of Lee’s testimony, Evanier has improperly usurped the role of the jury.” In any court case this is a massive no-no and as a result of this, and other reasons that you’ll soon read, none of what John Morrow or Mark Evanier can be considered. Attacking Stan Lee might be a popular pastime amongst people, but in a court of law attacking his credibility isn’t enough to, “raise a genuine issue of fact”. In a court of law opinion is not evidence, it is merely opinion.

Sadly the court has relegated Jack Kirby to that of a mere artist and has reduced his role of co-creator with Stan Lee on some creations, such as Thor, Iron Man and Ant-Man. This is a tragedy indeed, and I’d hope that, at some point, the Kirbys and Marvel can sit down and work towards redressing this oversight. I still don’t believe that Kirby created Spider-Man, but I do believe that he had a strong hand in other characters that Marvel published. The court did state that Kirby and Lee co-created other creations, such as the Fantastic Four, the Avengers, the X-Men, the Hulk and more. That’s a definite win and, now that it’s on the record, this gives the Kirby’s a stronger hand with which to negotiate with Marvel, should they decide to do so.

And let's be very, very clear here - as the judge states in the finding, this case was not about Stan Lee vs Jack Kirby at all, or did Stan Lee create the Marvel Universe or did Jack Kirby create it or was he treated fairly, or is it fair that Marvel make billions from Jack Kirbys vision while the Kirby estate make nothing. This case was all about whether the work Jack Kirby did in those years between 1958 to 1963 came under the umbrella of 'work for hire' or not. I'm sorry to say this, but it really was as simple as that.

Ultimately what let the Kirbys down was the lack of concrete evidence to support their claims. Marvel produced several documents, signed by Jack Kirby, assigning, “any and all right, title and interest [Kirby] may have or control,” in all the work that Kirby created for Marvel. By signing these documents Kirby signed away whatever rights he might have had, and by not being able to produce any form of a contract for the time period in question, the Kirbys were not able to dispute Stan Lee’s claims that Kirby was a freelancer who was hired to draw comic book art. Again, that hurts, but Lee was there, Lee handed the assignments to Kirby and until someone can prove otherwise, beyond doubt, that's what's going to remain. You don't have to agree with it, you don't have to like it - I certainly don't - but that's how the court sees it. Unfortunately for the Kirby's there is nobody left living to dispute Stan Lee's version of events. If only Kirby had filed himself, or when Ros Kirby was alive then the outcome might have been different, perhaps when Lee is gone and more solid evidence comes to light the Kirbys can try again.

The Kirbys also failed on the work for hire claim. Unlike Jerry Siegel and Joe Shuster, the Kirbys were not able to prove beyond doubt that Jack Kirby created any of the Marvel characters outside of Marvel’s scope. Siegel and Shuster created Superman years before it was bought by DC, there was no evidence that Kirby did the same with any of the characters that he worked on at Marvel. Even Neal Kirby stated that Jack Kirby never, “worked on spec”, meaning that he never brought anything into Marvel, instead he waited for jobs to be assigned to him. Kirby also bore none of the risk associated with publishing the Marvel characters – rather Marvel bore that risk. Again, that cuts through the work for hire argument.

What this all adds up to is that the Kirbys lost and Marvel won. It’s a definite blow against the artists of the Silver and Bronze Ages, but, hopefully, the next time an artist, or writer, goes up against a company they’ll be better prepared and have a stronger case to present. In the meantime I’d not be surprised if the Kirby’s appeal the decision and, as I’ve stated all along, my hope is that the Kirbys and Marvel can work out a solution whereby Jack Kirby is properly given credit on books for the characters that he created, co-created and helped define, and that a financial gratuity is also arranged. But, with this victory in hand, there’s no reason for Marvel to sit down with the Kirbys anytime in the near future. And more is the tragedy. You'd like to think that, with the court handing down it's findings, this would now go away, but the truth is that this case and the ramifications will be hotly debated for a long time to come with people on both sides of the fence.

So, without any further commentary from me, here's the court's ruling in it's entirety.

11 comments:

dustymiller
said...

All depends on any decision to appeal, but barring that,there is now no legal reason for Marvel not to credit Jack in the comics. Fantastic Four created by Stan Lee and Jack Kirby etc. This, above any copyright claims was Jack's stated desire ... to be remembered.And why shouldn't he be?On a personal note, it's weird to see the judge highlight the VERY points you and I have been attacked on various sites for saying were the key points of the case. Anyway here's hoping Marvel does the decent thing now.

Dusty - don't think that didn't escape my sight for one second. Unfortunately for the Kirbys they just didn't have enough to prove their case before the court. I'd also hope that Marvel can be big enough to extend the hand of peace, but yeah, they really don't need to.

A. Neal Kirby was of course, mistaken when he said his father never did anything on spec. He clearly did the New Gods characters on his own. He created many properties with Joe Simon on spec, such as Kamandi of the Caves, or the Night Fighter, etc. B. Unfortunately the contracts that Kirby signed would be considered "onerous." Statements he made about "understanding the company owned the characters" same thing. If he didn't sign these contracts, he didn't work. No negotiation. Therefore the company is using unfair advantage to break intent of the copyright laws that protect creators. Should Kirby have just dropped comics and worked on novels where an author actually owns what he has created, or start his own company? I've seen this argument on the internet. That would have been good considering this awful ruling. Until Stan Lee can produce his character designs for any of the Marvel characters, Kirby will always have to be the co-creator at least because Stan did not design the characters.C. 'No one is alive to refute these claims'... No, actually, John Severin says he heard Kirby's pitch for "Sgt. Fury and the Howling Commandos." (And note a group of commandos with with ancestries from different countries. Remind you of anything? Boy Commandos maybe?) Dick Ayers and Steve Ditko have both made statements that Stan Lee tried to intimidate them when they tried to get credit on stories that they plotted. Stan says he'll leave Ditko alone to plot stories until sales start to slip in a newspaper interview, then what? Take away his income for work he was actually doing and getting credit for? http://www.hembeck.com/More/HeraldTribuneArticles/MarvelArticle.htmDitko saw the Kirby Spiderman pages and they were very similar to the Fly including a "magic ring." Stan created the " Magic Ring", the Spiderman name?ThanksJoe Dokes

Joe:A] While Kirby did create the New Gods 'on spec', the case was dealing with a certain time frame here - 1958 to 1963. There is no evidence to prove that Kirby worked 'on spec' during this time period. What he did later had no bearing on the case.

B] Nobody could prove that what Kirby signed was "onerous" or that he signed under duress.

C] Severin wasn't called, or he declined to appear, not sure which one. it was.

D] Dick Ayers said no such thing in his declaration for the court, and Ditko wasn't asked. Personally I wished Ditko was deposed as his testimony would have been a highlight, but I fear it could have been too damaging for both sides. And I firmly believe that Lee and Ditko created Spider-Man, there is no magic ring in this case.

"B] Nobody could prove that what Kirby signed was "onerous" or that he signed under duress." Except by reading it.

"D] Dick Ayers said no such thing in his declaration for the court," Which is unfortunate. He wrote about it in his autobiographical graphic novel. It establishes a living person's account that Stan Lee would get annoyed when someone asked for plotting credit for.... plotting. Unfortunately Wally Wood and Joe Orlando are not alive to be deposed about their similar experiences. Ditko wasn't asked, but he's written quite a bit about it. I wish Marc Toberoff had asked about this. It establishes a desire to be perceived as a writer of things you did not write.

"A] While Kirby did create the New Gods 'on spec', the case was dealing with a certain time frame here - 1958 to 1963. There is no evidence to prove that Kirby worked 'on spec' during this time period. What he did later had no bearing on the case."

Kirby says he brought in Thor and Iron Man, however it can never be proven. Only Stan is alive who saw this if it is indeed correct.

However, " There is no evidence to prove that Kirby worked 'on spec' during this time period." ......So the mysterious "Spiderman" pages Ditko talks about were not brought in on spec. Stan said "I want you to bring in a Spiderman story that is just like the Fly. You just happen to have a character by that name that was developed by your old studio. I just guessed you have it, plus a logo Joe Simon drew." It's an unfortunate example.

Joe, again, if it could be proven it would have been proven. And that's what the court operates on - what can be proven. And, sadly enough, the Kirby side could not prove, beyond doubt, that he did any work 'on spec' during that time period. It's crappy, but it's there. And yes, Dick did talk about Lee and his issues in his autobiography, but he didn't say it during his declaration, and his autobiography was not introduced as evidence.

Call me silly, but I do believe that the Kirbys lawyer - Marc Toberoff - did not present anywhere near as strong a case as he could have. And that's who it comes down to.

Re Fury.There is an audio tape doing the rounds of a Kirby speech at the San Deigo Con in the 1970's. In it Kirby says Marvel gave him Sgt Fury. Lee has said under oath that he gave Fury to Kirby. If both parties agree on what happened it's going to take an awful lot of fan revisionist to change the facts. Kirby went on to say that when he got Fury he did it his way and that is the way it happened.Severin's comments are interesting because it shows that once given Fury, Kirby may have introduced elements from that proposal (if it actaully existed no copies have been found) but it's not relevent to the current case.

The greatness of Kirby has blinded people to the truth, contained in the generic contracts he signed with Marvel: It was work for hire. Marvel does not need to give him any further monies or recognition.

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